U.S. v. Stout

• Decision Date: 20 December 2007
• Docket Number: No. 06-6353.,06-6353.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael STOUT, a/k/a Michael Pletz, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

509 F.3d 796

UNITED STATES of America, Plaintiff-Appellant, v. Michael STOUT, a/k/a Michael Pletz, Defendant-Appellee.

No. 06-6353.

United States Court of Appeals, Sixth Circuit.

Argued: July 19, 2007.

Decided and Filed: December 20, 2007.

ARGUED: Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky, for Appellant. Joseph E. Blandford, Jr., Landward House, Louisville, Kentucky, for Appellee. ON BRIEF: Terry M. Cushing, Jo E. Lawless, Monica Wheatley, Assistant United States Attorneys, Louisville, Kentucky, for Appellant. Joseph E. Blandford, Jr., Landward House, Louisville, Kentucky, for Appellee.

Before: KENNEDY, GIBBONS, and McKEAGUE, Circuit Judges.

KENNEDY, J., delivered the opinion of the court, in which GIBBONS, J., joined. McKEAGUE, J. (804-08), delivered a separate dissenting opinion.

OPINION

KENNEDY, Circuit Judge.

Defendant Michael Stout is charged with receipt and possession of sexually explicit visual depictions of minors under 18 U.S.C. §§ 2252A(a)(2)(B) & 2252A(b)(1) (receipt) and §§ 2252A(a)(5)(B) & 2252A(b)(2) (possession). Before trial, the government proffered evidence that Stout had pleaded guilty in state court to surreptitiously videotaping a 14-year old female neighbor while she showered. Stout moved in limine to suppress this prior bad acts evidence. The district court granted his motion finding that the unfair prejudicial effect of the evidence significantly outweighed its probative value. The government appealed pursuant to 18 U.S.C. § 3731. For the reasons that follow, we AFFIRM.

BACKGROUND

I. Factual Background

Stout's criminal history is, quite frankly, revolting. In May 2001, Stout pleaded guilty to three counts of a state indictment. The first two counts charged him with "installing a hidden camera in the home of family friends," and videotaping their 14-year old daughter in the shower. United States Trial Mem., 2; see also Dist. Ct. Mem. Op. & Order (hereinafter "Dist. Ct. Op."), 1-2, 2006 WL 2927505, Oct. 12, 2006. The third count charged him with first degree sexual abuse of his 6-year old stepdaughter. Id. In September 2001, the Boone County Circuit Court sentenced Stout to 10 years imprisonment for each of the first two counts and 5 years imprisonment for the third count. The court, however, granted a defense motion for 5 years of probation contingent on 180 days actual jail time and lifetime registration as a sex offender. The 180-day sentence apparently ran from, at latest, the date of Stout's guilty plea, because in November of 2001 Stout moved to Louisville and his probation supervision was transferred.

During the summer of 2005, Stout's probation officer received a tip that Stout possessed child pornography. On August 8, 2005, several probation officers and a Louisville police officer visited Stout's residence. He consented to a search of his computer, which revealed evidence that it had been used to view pornographic web pages. Stout denied responsibility, claiming that his coworkers and girlfriend might have viewed the pages. His girlfriend confirmed the explanation that the computer was available to others.

The officers seized the computer. Forensic examination revealed 37 sexually explicit photographs that the government alleges are of minors.¹ The government indicated that the images were recovered from the "unallocated space of the computer's memory," from which it concluded that they were viewed during Internet browsing, but were not downloaded and saved by the viewer. The images were of teenage girls in sexually suggestive poses, none of whom were under the age of 12, and all of whom were alone in the photographs. It appears from the record that there were additional similar (but legal) erotic images of women over the age of 18 on Stout's computer in the same unallocated space.

II. Procedural History

Stout was indicted by a federal grand jury on June 21, 2006. The government filed a pretrial memorandum indicating its intent to introduce evidence of the first two counts of Stout's state court conviction at trial to demonstrate Stout's "knowledge and intent to receive and possess child pornography, as well as lack of mistake or accident."² United States Trial Mem., 9 (citing United States v. Hall, No. 98-6421, 2000 WL 32010, at *3-4 (6th Cir. Jan.4, 2000) (unpublished disposition)). Stout filed a motion in limine under Federal Rules of Evidence 404(b) and 403 seeking to suppress evidence of the prior convictions as significantly more unfairly prejudicial than legitimately probative.

Other than the prior conviction, the government's evidence is limited. It could include testimony from the probation officer as to the search of Stout's residence, testimony of the computer expert as to his forensic analysis leading to discovery of the images, expert testimony as to the girls' ages, and testimony of Stout's ex-wife with regard to Stout's practice of viewing pornography on the internet.

After jury selection, but before the jury was sworn, the district court granted Stout's motion. United States Br. 2-3, 7-8. The government filed this timely appeal under 18 U.S.C. § 3731.

ANALYSIS

I. Jurisdiction

We have jurisdiction of this appeal pursuant to 18 U.S.C. § 3731,³ which provides, in relevant part:

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

II. Prior Bad Acts

Prior bad acts, including prior convictions, can be admitted under Rule 404(b), which requires (1) use of evidence for a proper purpose (that is, other than as character or propensity evidence), (2) relevance, (3) that the evidence not be substantially more unfairly prejudicial than probative pursuant to Rule 403, and (4) that the court give a limiting instruction, if requested, such that the jury will only consider the evidence for the proper purpose rather than as character or propensity evidence. Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Stout concedes on appeal that the United States has a proper purpose — intent and knowledge — and that the evidence is relevant to that purpose. Stout argues, however, that (as the district court held) the evidence was substantially unfairly prejudicial. Indeed, the district court found that "[t]he impression of Stout [ ] surreptitiously filming a 14-year[ ]old girl in the shower [ ] will predominate [the] trial, not the stored still-life computer images that actually occasioned the current charges." Dist. Ct. Op. at 8.

The standard of review of a district court's Rule 403 determination, in the context of Rule 404(b), is abuse of discretion. United States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir.1996) (citing United States v. Gessa, 971 F.2d 1257, 1261-62 (6th Cir.1992) (en banc)). "In determining the admissibility of bad acts evidence under Rule 404(b), a trial judge is accorded `broad discretion.'" United States v. Vance, 871 F.2d 572, 576 (6th Cir.1989) (quoting United States v. Ebens, 800 F.2d 1422, 1433 (6th Cir.1986)).

a. Probative Value

To convict Stout, the government must show that he possessed pornographic images that he knew were of children. 18 U.S.C. § 2252A(a)(2), (a)(5); see United States v. X-Citement Video, Inc., 513 U.S 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (discussing 18 U.S.C. § 2252(a)(1)(A) & 2252(a)(2)(A)). Because the government has limited evidence of Stout's mental state, it argues that the evidence is exceedingly probative. The district court noted that "the prior acts are [ ] `critical,' but only for the reason that the government's evidence connecting Stout to the actual possession and receipt, though clearly sufficient for conviction, is slight." Dist. Ct. Op. at 7.

Actual knowledge in a child pornography case is often, undoubtedly, difficult to show when the persons depicted are teenagers. The prior bad act evidence in this case can demonstrate (although admittedly somewhat weakly) that Stout had knowledge of the subject matter outside of the ordinary ken. Having produced and (presumably) viewed the pornographic images of one child, he is more likely to identify children as children in other pornographic images. The probative value is not strong — but that is not the test. All relevant evidence is admissible, subject to specific restrictions in the Federal Rules.

The district court recognized the proper probative value of Stout's prior convictions. It noted, "[w]hile the proffered evidence is certainly probative, its value and relevance is narrowly consigned to the intent and knowledge elements of the charges." Dist. Ct. Op. at 6. It went on to explain that the other elements of the crime, actual possession and receipt of the images, were not implicated by this evidence.

The government argues that the district court did not "look at the evidence in the light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." United States v. Perry, 438 F.3d 642, 648 (6th Cir.2006) (quoting United States v. Zipkin, 729 F.2d 384, 389 (6th Cir.1984)). Maximizing its probative value, it argues, means considering its value vis-a-vis the other evidence available to the government to prove its case in chief. The district court found otherwise. It cautioned against misconstruing the government's argument that the prior bad acts evidence is "critical" to suggest that it has any greater probative value. The district court concluded that "[w]hile it is likely true that the [prior bad act] evidence is subjectively critical to this case under the 4...